Check your (legal professional) privilege!

What will the seminar cover?

The primary purpose of the Courts in any legal system must be to determine the truth. In common law systems, that purpose is generally facilitated by subjecting witnesses to cross-examination and requiring parties to disclose and produce relevant documents. However, in certain cases, one may resist giving relevant information or producing relevant documents by invoking the doctrine of legal professional privilege.

The history of legal professional privilege stretches over half a millennium. Despite this, it continues to be tested by litigants and refined by the Court. An understanding of the modern doctrine is important if we are to properly balance the competing obligations of disclosure and confidentiality.

In this seminar, you will hear about:

• the history of legal professional privilege and its modern application;
• the maintenance and waiver of legal professional privilege;
• recent developments concerning the abrogation of legal professional privilege.

Who should listen?

The session will interest all commercial advisory and litigation lawyers, in-house counsel and their clients.

PRESENTERS

Matthew Jones (Barrister, Level Twenty Seven Chambers)

Matthew has fourteen years’ experience as a barrister, having previously been trained as a solicitor by market leading litigators. He is know for his strategic and commercial approach to litigation, spanning very substantial resources litigation to joint venture and business disputes. His practice focuses primarily on resources, building & construction, shareholder disputes, professional negligence and insolvency. He also has strong practices in insurance, intellectual property, banking & finance and property matters.

Jason Mitchenson (Barrister, Level Twenty Seven Chambers)

Jason’s broad civil practice focuses on contract, equity, construction & infrastructure, competition & consumer and IP disputes. He is particularly experienced in arbitration. His clients include state entities, national manufacturers and resource companies, shareholders, property developers and company owners.

MATERIALS

The presentation was recorded as a live in person seminar/webinar. The video recording, PowerPoint and transcript are available here.

Did you miss previous seminars? Check out the seminar archive on Level Twenty Seven Chambers' website for the video recordings and associated materials produced by the speakers.

Want to join future seminars live, in person or online? Register your interest.

Website: www.level27chambers.com.au

Transcript

BACKGROUND TO THE DOCTRINE OF LEGAL PROFESSIONAL PRIVILEGE

00:15

Jason Mitchenson (JM): I am told that we have had a significant amount of interest in this seminar. Now, it may be the witty title - I should give due credit to Matt Jones over there. Or it may be that you are genuinely interested in the topic of legal professional privilege. Either way, thank you very much for coming. But if you are here because you are genuinely interested in the topic of legal professional privilege we don't blame you. To us the doctrine is both academically and fascinating practically. It is academically fascinating because it sits between two conflicting public interests. The first is the discovery and ascertainment of the truth. The primary purpose of the courts in any legal system must be to determine the truth of the matters before them. In common law systems, that purpose is generally facilitated by subjecting witnesses to cross examination and requiring parties to disclose and produce relevant documents. The second public interest is that every person should be given the opportunity to seek legal advice and legal assistance. That opportunity, if it is to be a proper one, demands a zone of privacy in which a person may freely consult with their lawyers and in which lawyers may freely prepare cases on behalf of their clients. The doctrine of legal professional privilege recognises that, in certain cases, one may resist giving relevant information or producing relevant documents. The modern doctrine, as it is recognised in Australia, is perhaps best stated by the High Court in Daniels. I might just get that up and let you read it [slide 4].

01:57

It is probably something we are all familiar with. But in other jurisdictions, there are not resist giving information, or producing documents on grounds of legal professional privilege has been described as a fundamental human right. In this jurisdiction, some judges and commentators have made similar claims. If you step back and think about it, this is no small thing. When you make a claim for legal professional privilege, you are purposely withholding relevant information from the court and your opponents. That information may be vital to determining the truth of the matters before the court. But you do so on the lawful grounds that the information or those documents would reveal communications which would unduly encroach on a recognised and protected zone of privacy that the law affords to your client. 

It is often said that the doctrine of legal professional privilege seeks to balance these two competing public interests. That is one way of looking at it. In my opinion, the better view is that legal professional privilege sacrifices the potential ascertainment of the truth through full and frank disclosure to protect a person's right to seek legal advice and legal assistance. This is because once legal professional privilege applies there is no counter way in which you might, for example, apply in order to support disclosure against it. So rather than saying that it can be outweighed by some other factors, you really have to argue that it does not apply or that the privilege has been waived or abrogated in some fashion. 

Something akin to the modern doctrine of legal professional privilege started to emerge in 16th century England. However, it was not until the 18th century that a logical basis for the doctrine was really articulated. So over 140 years ago, Vice Chancellor Knight-Bruce made the following observation in support of the doctrine. [Slide 5] “The discovery and vindication and establishment of truth are the main purpose certainly of the existence of Courts…but not every channel ought to be open to obtaining that objective…Truth, like all other good things, may be loved unwisely – may be pursued too much - may cost too much.” 

He is quite the poet but there is also, I might do something a little more modern and grounded down, where Justices Stephen, Mason and Murphy articulated this basis, perhaps in slightly more modern language [slide 6].

04:34

As you are reading through, can I point your attention to the last sentence. “None the less there are powerful considerations which suggest that the privilege should be confined within strict limits.” I will come back to that in a moment. 

A review of the history of legal professional privilege demonstrates that since it first emerged the doctrine has been in a constant state of flux. For centuries, litigants have tested the doctrine’s boundaries and the courts have attempted to strike the appropriate balance between these two public interest considerations. This has caused the doctrine to harden in some areas but also to appear fragile in others. The case law demonstrates that support for a zone of privacy around lawyers and their clients is almost unquestioned, both academically and judicially. But the scope of that zone has been the subject of significant debate, often leading to cracks in its foundations. There is perhaps no better illustration of this than the fact that many of the seminal High Court cases, particularly in the last thirty to fifty years, have been majority decisions with several being by bare majority. In some of these cases, judges have bowed to the burden of precedent, whilst recognising that the doctrine has worked and injustice in the case at hand. 

Theory is all well and good, but as I said at the start, the doctrine is also interesting from a practical perspective. Whilst it was not always the case, it is now settled that the privilege is the client’s, not the lawyer’s. Be that as it may, lawyers are the keepers of their client’s privilege. By that, I mean, it is lawyers who make the forensic decision whether a particular document should be produced or whether it is properly subject to legal professional privilege. At least in my practice, and to those I have spoken with, it is rare to be in a case in which questions of legal professional privilege do not actually arise. For lawyers, to me, this is really a zero-sum game, our client is subject to disclosure obligations, those are very important obligations that have to be complied with. At the same time, we owe this duty of confidence to our clients. And so, there may be very serious consequences for claiming privilege over documents that ought properly to have been produced. Likewise, there might be very serious consequences for producing documents which ought properly to have been withheld on grounds of legal professional privilege. So, for part of this seminar, the hope is that through a deeper understanding of legal professional privilege we might work together to help work through these kinds of decisions in practice. 

Can I talk about the history of legal professional privilege. For legal professional privilege to exist, there must be two things. The first is a need for lawyers. That is where we come in. The second is the need for rules or laws which compel the production of confidential communications between clients and lawyers. That is, perhaps unfortunately, where the state comes in. These two considerations have existed since at least the 13th century. By the end of the 13th century, the law had become so complex and convoluted that litigants in England routinely relied on professional lawyers to advance their interests before the court. People also began to rely on lawyers to obtain legal advice outside the courts. In order for lawyers to advance the interests of their clients they obviously needed to communicate. Obviously, this was done in private. 

The process of issuing subpoenas to compel persons to attend court to give oral evidence was invented by the chancellery in the 14th century. In the 15th century a bill was brought before the Chancellor usually preying upon a subpoena that will be issued to secure the appearance and examination of the defendant. Once the defendant appeared the Chancellor could cross examine effectively or examine the defendant, the plaintiff and any other witnesses who were produced. The chancellor at that time could also compel the production of documents and during this period the process of disclosure or discovery became commonplace. It is unlikely that the Chancellor of the day would have foresaw what modern discovery looks like. Presumably in that day it was a much smaller task. 

The earliest reported decisions that address something akin to legal professional privilege arise in 16th century. As best I can discern from the literature, there appears to be thirteen reported cases during this period which touch on legal professional privilege. The earliest appears to be the case of Lee v Markham which was decided in 1569. I will put it [slide 7] on the board because that is the entire report. I figure you can probably get through it in thirty seconds or so.

09:18

So here we see something akin to the concept we now know is a doctrine of legal professional privilege. It is a little rough around the edges but I don't think we can be too critical because it was being invented from scratch. The problem for us, I mean, looking backwards, is that we cannot really find a legal foundation or jurisprudential foundation within this very minor reasoning. Everyone must have heard about this amazing case in which a completely new doctrine of law was invented because immediately after there was a flurry of cases addressing the exact same concept. Unfortunately, none of those cases in this period articulate the basis for this brand new doctrine but they do speak with one voice. They all say that a lawyer was not compelled to give evidence of not of knowledge that the lawyer acquired through acting for their client in the case of. Importantly, however, they could not be examined on any other matter. 

Wigmore contends that the original theory underpinning the exception to testimonial compulsion was a consideration for the honour of the lawyer, rather than the interests of the client. Unlike today, the idea is that the privilege was the lawyer’s, not the client’s. The theory is that the doctrine emerged in order to preserve the honour of the gentlemen who practice law, which was always of course and as we all know, a very honourable calling. That honourable calling was, of course, to be distinguished from doctors, for example, whose predecessors were mere mothers of spells and hawkers of herbs. If that is the basis for the doctrine then oh how the mighty have fallen, I guess. But I think the better view, which I know unfortunately is a completely unsatisfactory answer is that we do not really know. Justice Brereton in an excellent chapter on legal professional privilege suggests the idea that the doctrine emerged to protect the honour of lawyers is a dubious one at best. 

The 17th century though was marked by a proliferation of reported decisions concerning legal professional privilege. However, like those of the 16th century, they give us little insight into the basis for the doctrine. We do however start to see the doctrine grow and find its feet. For example, in Leggart v Foot which was decided in 1673 a lawyer successfully resisted a bill of discovery. The lawyer in question had been employed as a lawyer by the client in several cases and was held that he was not required to give discovery in respect of any of them. Prior to Leggart, a lawyer was only immune from giving discovery in relation to the case at hand. 

In this period, we also see what appears to be the first use of the term privilege in a case called Bulstrod v Lechmere decided in 1676. The report notes that as a lawyer one had the privilege of the bar and therefore we are not bound to give evidence. Exactly what the privilege of the bar was is difficult to discern because the cases from this period all look a bit like this one. The use of the term does, however, potentially lends credit to the idea that the privilege was the lawyer's privilege, not the client, and perhaps it was in favour of their honour. 

It is not until the 18th century that we start to see a proper articulation of the underlying foundation of the doctrine. One particular decision stands out, the case Annesley v Earl of Anglesea. The case was held before three eminent barons in the king's court in Dublin. It is a landmark case in relation to legal professional privilege but it is probably most famous because it went for a whole fifteen days which was at the time the longest running trial anyone had ever seen which is like most trials these days. 

The case is interesting to us for four reasons. The first is that the baron spoke of the increasing need for lawyers in the 18th century and the necessary requirement of confidence between clients and their lawyers. The second is that the barons accepted that the policy of the law in protecting secrets disclosed by their clients was in favour of the client and it was for the client service. If there was any doubt about whether it was the client or the lawyer who had the privilege this case settled it, it was the client’s. The third reason is that this case was authority for the proposition that to determine whether a particular communication was of a protected kind one had to determine objectively whether the information was necessary for the lawyer to actually do their job. Of course, that test has long since been abandoned under the modern doctrine. Today, we ask whether the dominant purpose of the communication was for the client to obtain legal services from the lawyer. However, the concept of necessity is not dissimilar to the old test, which was valid up to about 1997, which was that essentially needed to be the sole purpose or the sole purpose test. The fourth reason is that we also see in this case the genesis of what would become the crime or fraud exception for legal professional privilege. In this case the testimony sought concerned a conversation about the commission of a crime. The Lord Chief Baron described the conversation to have been part of a wicked secret and ought not to have been concealed and would appear to have been willing to admit the evidence on that exact basis. 

If we then move into the 19th century, we see a further broadening of the doctrine. The 19th century is marked by a proliferation of reported cases concerning legal professional privilege. I do not have time to go through all of them but there is one in particular which is Pearse’s cases which I have already referred to. In that case, Vice Chancellor Knight-Bruce set up on a defence of the doctrine, holding that whilst the discovery and establishment of the truth is the main purpose of the courts, forcing the production of confidential communications was too higher price to pay. From that central position, the Vice Chancellor accepted the argument that all communications between a client and the lawyer in the course of and for the purpose of that business are privileged communications. From Pearse emerged what might be recognised by modern lawyers as legal advice privilege as a separate basis to litigation privilege. 

MODERN DEVELOPMENT OF DOCTRINE OF LEGAL PROFESSIONAL PRIVILEGE

15:13

JM: Can I touch briefly on the development of the modern doctrine in the last fifty years, so moving forward one hundred or so years. The starting point is really Propend [slide 8]. You have all probably seen this one. This is going back to what I was talking about before which is communications made solely for the purpose of contemplated or pending litigation or obtaining or giving legal advice.

15:46

I do not think that is a bad definition if one swaps out sole purpose for dominant purpose. Of course, you have to swap out sole purpose for predominant purpose because about two years after this case the High Court flipped and changed its mind and moved to the dominant purpose test. With the change, at least as I read the case, I mean cases that have come after it, is due to the fact that the changing nature of the way lawyers do their job. They are not always giving perfect legal advice every time or receiving information that is sometimes muddled commercial and legal in one. 

That is where we are at today but it would be wrong to think that it has been smooth sailing for the doctrine of legal professional privilege. Although I have largely focused on cases in which its scope has broadened, the doctrine actually had significant detractors at the time. Jeremy Bentham, who is a real scholar of the common law, was one of the biggest detractors and said “If you're not guilty, why wouldn't you handover everything?” Obviously, he is missing the sort of nuance of the argument of the case law that we have today and also the history that stems from the court from the 16th century. 

Today, most but not all, recognise the importance the doctrine plays in the administration of justice. But the fact that it can lead to injustice in particular cases has led to heated debates about how we can best define its scope. Around the same time as Propend v Esso there are a number of seminal High Court decisions on legal professional privilege. An interesting feature of these decisions is that most of them are majority decisions or bare majority decisions. You can think, for example, Grant v Downs, Baker v Campbell, Waterford v Commonwealth and Goldberg for example, all High Court decisions which were split by majority or bare majority. Perhaps the most interesting case of this nature is the High Court's decision in Carter's case where a person facing trial after several indictable offences sought access to documents which had the potential to establish his innocence or at least assist in his defence. A claim for legal professional privilege was made in respect of those documents and a 3:2 majority of the High Court upheld the claim thereby denying the accused the opportunity to actually inspect the documents and prove his innocence. 

The case is interesting for two reasons. The first is that it shows reasonable minds can differ on how we ought to balance these competing public interest considerations. In Carter's case, legal professional privilege was upheld by the barest of majorities, had the swing been the other way we would have seen a significant weakening of the doctrine. Instead, in the face of what is really a serious outcome and perhaps an injustice in the particular case, the core of the doctrine was actually reinforced. The second is that sometimes the application of the doctrine results in unsatisfactory outcomes in individual cases. In Carter, Justice Toohey said “It may seem somewhat paradoxical that the perfect administration of justice should accord priority to confidentiality of disclosure over the interests of a fair trial, particularly where an accused is in jeopardy in a criminal trial for a serious offense.” The result is that at the turn of the 20th century, and today, we see a move to limit the application of the doctrine. Sometimes that is done judicially, sometimes it is done by way of rules. Matthew Jones is going to speak to you about the abrogation of legal professional privilege, primarily by virtue of the rules. But for example, in Grant v Downs, I drew your attention before to that last sentence where the High Court held that there are powerful considerations which suggest that legal professional privilege should be contained within strict limits. I quite like this quote from Justice Pincus in Interchase [slide 9] which I think on my reading of the cases, and also the literature, encompasses where we are at today and this move towards moving, reinforcing legal professional privilege for what it is but at the same time making sure we strictly confine its limits.

IMPLIED WAIVER OF LEGAL PROFESSIONAL PRIVILEGE

20:01

JM: Can I move away from the doctrine of legal professional privilege and talk about the waiver of legal professional privilege. In particular, I want to talk about the concept of implied waiver. I want to touch on this topic because it seems to strike fear into the heart of every lawyer everywhere. I know that when I was a junior solicitor it certainly struck fear in the heart of mine, particularly when I was assisting with the preparation of witness statements for example. The starting place is the High Court's decision in Mann v Carnell [slide 10].

20:35

I do not intend to really address you on the concept of express waiver. If you do not want to expressly waive something, do not express it. The concept of implied waiver which I think people get into difficulty with.

20:56

The waiver of privilege occurs where there is an inconsistency between the conduct of the client and the maintenance of the confidentiality it protects. The authorities are clear that the question is an objective one. Privilege can be waived by the conduct of the client, even if the client did not subjectively intend to waive that privilege. Of course, lawyers can waive privilege for their clients, either on purpose or accidentally. The species of implied waiver, sometimes referred to as issue waiver, arises when a party puts the content or some of the content of an otherwise privileged communication into issue such that the act can be regarded as inconsistent with the maintenance of confidentiality and as legal professional privilege. Importantly, the doctrine of issue waiver extends further than the waiver of a single communication. If the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication then they may be taken to have waived privilege over associated material with respect to the same issue, or the same subject matter. A common example is where a party discloses part of a legal advice. Ordinarily, they will be taken to have waived their right to claim privilege over the entire thing. Likewise, and perhaps scarily, they might also be taken have waived privilege over associated biases or associated material on the same issue. Perhaps where things get most interesting is where a party has pleaded their state of mind, they have otherwise opened up privilege communications up to scrutiny that relate to a particular issue of subject matter. 

A particularly important case in this area is the case of Oceltip Pty Ltd v Nobel Resources Pty Ltd. If you have the time and you want to know about issue waiver in particular Justice Bond gives a brilliant recitation of the case law to date. It is practically everything you need to know about issue wherever. In Oceltip…as the I should say, [jokes] as he ordinarily does when he approaches legal principles, if you're watching….Nobel had pleaded estoppel in its defence. The estoppel was based on alleged representations made by Oceltip to Nobel that the signature of one of its Directors on a deed was sufficient to [inaudible]. Critical to Noble’s estoppel plead was the allegation that in reliance on those representations Noble believed that the deed had been validly executed and bound Oceltip. Oceltip brought an application seeking a declaration that Nobel had waived privilege over communications between it and its legal advisors in relation to Noble’s alleged belief in the liens. Importantly, there was no pleading by Nobel of any privileged communication, the content of any privileged communication or the effect of any privileged communication between Nobel and its legal advisors. Oceltip’s argument was simply that by pleading its state of mind Nobel had impliedly waived privilege over communications that were likely to have affected its state of mind. I can see Matt Jones is grinning because he was on the right side of that case. If you have any questions you can direct them to him. 

24:04

Can we have a look at what Justice Bonds said [slide 11]. In that case, Justice Bond ultimately held that despite the fact no reference had been made to any confidential communications pleading Nobel should be taken to have waived privilege over confidential communications between it and its legal advisors relevant to its pleaded state of mind. So, where the case brought by the party claiming privilege includes as an element, the existence of a particular state of mind, the question of whether a waiver of privilege should be imputed will depend on a range of matters, bearing on the inconsistency in the forensic unfairness that will result between the pleaded case and the maintenance of the privilege. 

In Oceltip Justice Bond held that there were a number of factors that were relevant to his determination that by pleading at state of mind Nobel had opened up to scrutiny confidential communications between it and its legal advisors. These factors included the reasonableness of Nobel’s reliance on the representations was a relevant issue in the proceeding, the estoppel claim was a positive case put forward by the same party claiming the privilege, there was a strong inference to be drawn that there were confidential communications likely to have affected its state of mind and the specific nature of the state of mind was a legal state of mind related to whether or not a party was bound by a particular agreement. 

Although this case concerns a pleaded estoppel there is really no reason why it would not apply to other cases which have as a necessary element of the cause of action a belief or reasonableness. I am thinking in particular of this sort of tendency in pleadings to tack on ACL claims, which should be there but at the same time you have this risk. When you plead the state of mind you have to think about when I am pleading this particular state of mind, where a necessary element is my belief, or the reasonableness of reliance on something, then that could open you up to scrutiny of confidential communications between the client and the lawyer. Often, I must admit, I often sort of don't think about, or particularly in my early years did not think about it in that fashion, but it is now something I do. 

That is all I wanted to say about the doctrine of legal professional privilege and waiver. I might hand across to Matt Jones. Thank you very much.

ABROGATION OF LEGAL PROFESSIONAL PRIVILEGE

26:42

Matthew Jones (MJ): [Slide 12] Good evening, great to see such a fine turnout. 

Now, the issue of abrogation of legal professional privilege has become topical with the Court of Appeal’s decision a couple of weeks ago in Enkelmann v Stewart and because that decision concerned communication in relation to expert evidence. It affects practically everyone who is involved in commercial litigation. 

[Slide 13] I am going to explore the issue in five parts. The first will be a refresher briefly on the law of abrogation. The second will primarily be about the treatment of rule 212(2) of the UCPR which you will be aware abrogates privilege in relation to statements or reports of experts. I will work through a number of decisions which set the scene for the Court of Appeal’s judgment in Enkelmann. That part, section two, will be the majority of my presentation this evening. The third will be to consider the somewhat related topic of the illegality exception, which Jason mentioned, particularly because the threshold required to displace the claim of privilege under that approach seems rather permissive, when compared to the Court of Appeal’s fierce protection of privilege in Enkelmann and other cases. A comparison of those approaches will be the fourth short part of the presentation. I will conclude with some potentially controversial practical considerations, including a suggestion as to what the next big case between the Court of Appeal on the issue of expert evidence might be.

I apologise for my voice. I have got another daycare cold. Those who know me will be very familiar with this. 

STATUTORY OBLIGATION

28:20

MJ: [Slide 14] The issue of statutory obligation. So very briefly, abrogation is meant in the sense of overriding and, as we will see, there are different ways that privilege can be lost. We will deal with two statutory obligations which includes rules by the way of subordinate legislation and also express statutory obligation. Importantly, it is a rule of substantive law and not a rule of evidence, the issue of importance keeps coming back. The privilege cannot be abrogated unless the statute does so by clear or unambiguous words, or by necessary implication. When relying on unnecessary application there needs to be a high degree of certainty as to legislative intent. The privilege must be claimed before it can have any effects. 

Jason also mentioned the balance that underlies legal professional privilege. Once you get to the point the legal professional privilege exists and you are considering a question of application there is no more balance, the privilege is ether abrogated or it is not and that is because the balancing exercise has already happened before legal professional privilege was established. [Slide 15 & 16] Esso tells us that legal professional privilege is itself a product of a balancing exercise and no further balancing exercise is required. [Slide 16] That was reinforced in Glencore. I try to treat slides as a resource that people will take home later so I will shoot through them now. If you are interested you can have a look. You will see a reference to the public interest which protects the privilege is paramount to the more general public interest. 

[Slide 17] The leading decision in relation to abrogation of privilege is Daniels. You will see from paragraph 11 it is now well settled that statutory provisions are not to be construed as abrogating important common law rights in the absence of clear words or necessary implication. 

[Slide 18] Daniels considered the operation of section 155 of the TPA which allowed the ACCC for the production of documents. Just one moment [blows nose]. Thought I could get through twenty-five minutes without that. Now, you will see…It is unusual in hindsight, really, that the ACCC contended there was an abrogation of privilege because what the lengthy section did is required, allowed a mechanism to serve notices requiring production. [Slide 19] Subrule five, which you see buried in the bottom right hand corner, stated that a person effectively cannot refuse to comply and subsection seven stated that certain privileges were not abrogated. There was nothing said about legal professional privilege being abrogated. The section was found not to abrogate privilege. 

Justice McHugh gave a very useful and insightful description, as His Honour always did, in explaining the rationale and [slide 20] that is an elemental rule of such as reconstruction that courts do not read general words in a statute as taking away the rights unless the text points irresistibly to that conclusion – that will be relevant for Enkelmann v Stewart soon. [Slide 21] Paragraph 43, similarly, you assume a lack of intention to interfere. Down in the bottom of the right hand corner, “general words will almost always be able to be read” down when looking for the proper operation. That is the primer. 

[Slide 22] If you have an interest in it, the Senate Standing Committee for the scrutiny of bills in August 2005 surveyed the rather small number of statutory abrogations of privilege which existed at that time. Here are some of the examples, I think there were nine, but there are a few of them. You will see that abrogation unsurprisingly has arisen in investigation type cases in an aid of investigative powers. 

[Slide 23] But focusing on Queensland lawyers dealing with commercial litigation these days, rule 212 is both topical and very useful in examining how abrogation operates in practice. You will see by this rather short rule there are a few important concepts operating. Document in the Acts Interpretation Act’s version includes hardcopy and electronic documents. The rule uses the language consisting of, now it doesn't say, a document which is a report of an expert or a document which takes the form of a statement or report. It uses different language consisting of [inaudible]. A statement is arguably a legacy from an earlier version of the rule that was never taken out when the mechanism of expert evidence changed. Historically, before experts were required to give evidence in writing by report, solicitors had to deliver a summary of the anticipated evidence of the expert which was called a statement. That is probably now why statement still appears. The meaning of report is the central issue, we will come to that. 

DEFINITION OF EXPERT & REPORT

33:37

MJ: Rule 45 has the definition of expert. That is the person who would if called be qualified to give opinion evidence as an expert on an issue in dispute. For at least some such persons, some experts, they will owe that paramount duty to the court and will have signed up or at the stage of the draft report be planning to sign up to the code of conduct. I say some such individuals because the definition of expert is so broad that it can capture client representatives who have subject matter knowledge. They were never intended to be called as experts, who will never deliver a draft report or a final report and will never sign up to the code of conduct. That is a tangent for another time though. 

Thinking about each of the components of that little rule, we will take a quick journey through Queensland jurisprudence that takes us to May this year [2023] when there was a first instance decision in Enkelmann. 

[Slide 24] The first is what happens in the state of Queensland? First are a couple of PIPA cases. Sections 27-30 operate to abrogate privilege in the clearest possible terms in relation to certain types of reports. Justice Gerrard who was in the minority on an issue, which the other justices didn't pursue, said the problem with that submission, which in that case was that a solicitor's file note which records information communicated orally is not caught within the meaning of report. The problem with a submission that a solicitor’s file is not a report is as you will see. At least as a report appeared in section 27 of PIPA, a judge of appeal thought this solicitor’s file note could be captured. 

Justice Fraser, interestingly appeared for the respondent in that case and argued that a solicitor’s file note, I paraphrase, could fall within the definition of an investigative or medical report. Then when we get to Felgate v Tucker, which I don't have a slide for, in 2011. His Honour is now on the bench and agrees with President McMurdo that the report carries its ordinary meaning and that solicitors notes were unlikely to be reports. President McMurdo was far from persuaded. In being far from persuaded, Her Honour relied on the rationale of legal professional privilege to encourage the provision of frank instructions and frank advice. 

[Slide 25] Then we get to Allen. Allen applied Watkins, a catastrophic birth case where a couple of doctors who had been there wrote reports and a doctor was planned to be an expert. A doctor who had not been there wrote a report about what happened. The solicitor’s file notes in question on this point, the controversial ones, were the doctors’ firsthand recollections of what they had observed. They won't be called objective experts in that sense. Justice Fraser held that, on the facts of Allen, the solicitor’s file notes were not reports within the ordinary meaning of that term. But, I will suggest that that was in the context of the particular facts of the case. Justice White took a stronger view. Her Honour expressly disagreed with Justice Gerrard in Watkins but also said in the same paragraph that a different result might be suggested in different circumstances. So, everyone [inaudible] solicitor’s file notes being reports. Justice Fryberg said report is a word of wide denotation and said that, although it would be unusual, as you can see from the slide, it is the facts that will determine whether a solicitor’s file note is disclosable. So, it was opened so far.

[Slide 26] We all got very excited by Murphy Operator when it came out and clarified draft reports. The reasoning is worth noting, particularly by reference to what Jason showed us before. We have the reference to Justice Pincus in Interchase. 1990 pre-UCPR but order 35 rule two, I think was the same as r212 at the time. You will see a warning in 93 about reading too broadly. 94 focuses on the classification or taxonomy of what is a statement or report. 

[Slide 27] 95 of Murphy Operator contained another quote from Interchase which reflected the idea that privilege is abrogated no more than is necessary. [Slide 28] I have shown 96 and 104 together because there might be a little bit of a divergence potentially between the two. 96 reflected, again, the narrower review that statement or report have its natural or ordinary meaning. But then 104 is, I think, what everyone has picked up more recently and trying to get hold of your opponent’s documents. It is something wider, that a document which reflected the state of mind of the expert, whatever the title, and so perhaps then whatever the form was captured. For the reasons which will become apparent when we go through Enkelmann, I suggest that we should probably read paragraph 104 more narrowly now. It really should be taken as a document which reflects the state of mind of the expert and which takes the form of a statement or report will be captured but not otherwise. 

[Slide 29] For those trying to get hold of documents, there was a very exciting obiter morsel in Justice Dalton’s decision in Landel, buried in footnote 7. So really experts, in our opinion, at least in Justice Dalton’s, the opinion in those documents are disclosable. What I would suggest is, as the person who pushed this, with a leader below…who maintains the correctness of certain submissions on the basis of that case history, I would respectfully suggest to you that the basis of the law in Queensland in May 2023 was that there was at least a fairly arguable case that a solicitor’s file note which recorded the opinion of an expert on a fact of issue in a proceeding within the experts area of expertise could be disclosable, depending on the facts of the case and what the file note actually says. 

[Slide 30] What happened in Enkelmann v Stewart a couple of weeks ago? Well, in very brief terms, the Court of Appeal said ‘no’.

40:31

The image bears no resemblance, of course, to any of the Justices Flanagan or Bradley, in case Your Honours are watching. Although, as I was thinking about it, I think I have seen that look in Justice Bond’s eyes on at least a couple of occasions. 

Alright, so the relevant context of the first instance decision of Enckelmann was there was controversy about the nature and extent of [inaudible] interactions with experts. One was the hydrology expert, Mr. Giles, and it emerged in cross examination that there had been a meeting with Mr. Giles which predated his first letter of instruction and that had not been mentioned in the report or otherwise. If you were the opponent and say it was a bit of a secret, clandestine meeting but no one wanted to tell the court or the other side about. The expert gave evidence without objection as to what happened in that conference. The respondent succeeded on appeal on a notice of contention about the waiver point but the Court of Appeal otherwise accepted all of the, or both of the appellant grounds of appeal, including the narrow application of r 212. 

[Slide 31] The reasoning is really interesting. It is brief but it tells us a lot about how the principle works and how protective the Court of Appeal is of privilege. It is really 19-24 of Enkelmann that is the key bit. At 19 we have statements about the approach to the rule suggesting a cautious approach because the rule is an exception. It is novel, interstate practitioners can't believe that we have this rule. 

[Slide 32] At 21, a document brought into existence to be a statement or report of an expert. So not consisting, is. So, if it is or takes the form of a statement or report. Although the dictionary definition of consisting might suggest there just has to be an element or a part of a note that was rejected. You will see, it might be the next one, we will see a reference at the end of 22 [slide 33] “Nor are any parts of the note that refer to the expert’s opinion”. I can tell you from being in the room that is our response to this submission that consisting main component parts, and you can break down a note - that was firmly rejected. So, there is a clear shutting down of any suggestion that file notes of any form could be captured. At 23-24, reference to higher authority to support the view [slide 34]. 

This was not a project of blue sky analysis of text and purpose and the purpose being divisive expert shopping and bearing unfavourable reports and that thing that PIPA were designed to prevent but rather there was a firm policy decision based on first principles to limit the abrogation of privilege, which, with respect to the Court of Appeal is entirely, Your Honours, is entirely consistent with the approach in Daniel's and what has come before and everything that Jackson went through. The Court of Appeal noted here the narrow approach here taken in the 1990s and Interchase and said that approach was also consistent with what was said in Allen. But that is interesting because, as I noted earlier, the bits in Allen [slide 35] were where Justice White said the facts might make a solicitor’s file note disclosable and Justice Fryberg said the same thing. But that has been shut down. So very much a policy decision supported by the principles from the High Court in Daniels and other cases. 

[Slide 36] Something I find interesting when looking at that very powerful and protective approach is the illegality exception. I will do this very briefly as a counterpoint and to form an introduction to the practical considerations I will close with. This slide shows the key cases worth knowing about this topic, decorous handy as a Queensland decision of Justice Daubney, which traverses all the relevant principles and then applied them in a conservative way. 

TECHNICAL DIFFERENCE BETWEEN STATUTORY ABROGATION & ILLEGALITY EXCEPTION

44:49

MJ: The technical difference here between statutory abrogation, whether by rules or otherwise, and the illegality exception is that where the illegality exception applies there is no legal professional privilege in the first place. So, there is a declaration that never existed to begin with. That is because quote “contriving of a fraud could form no part of a recognised professional relationship”. As Jason said, a key part of legal professional privilege is the lawyer and there must be a legitimate lawyer-client relationship. It is not strictly abrogation of existing privilege but rather a declaration that a claim of privilege is not valid. Then the critical distinction within that is a communication between lawyer and client which advances in a legal purpose is not protected. But, as you would hope, you would expect, communication seeking advice about historical misconduct, to which the lawyer was not a party, are protected. 

[Slide 37] Have a look at the breadth from AWB, that is an Iraqi sanction busting case, how broadly it extends. So, all forms of fraud and dishonesty, including trickery and sham contrivances. In Deppro, the principle was applied to knock over privilege in a claim for breach of contractual obligations of honesty in good faith – pretty broad.

46:13

[Slide 38] The really interesting element about this principle is the evidentiary threshold when we have just seen how strongly protective the courts are of legal professional privilege in the hands of clients. The text here is “reasonable grounds for believing” and then two thirds of the way down “to give colour to the charge, a prima facie case”. So actual proof is not required but rather evidence giving colour to the charge. 

There is a balancing exercise here then about laws, largely about sufficiency of proof, but hearsay is fine. The real question then ultimately becomes whether on your feet, on the day, on the evidence, you can positively persuade the judge to declare that there is no privilege. 

[Slide 39-42] You can see from part of the reasoning in Deppro v Hannah, what Justice Daunbeny did which was conservatively rely only on admissions and documents, and otherwise, but rejection contentions, other suggestions and anything else said in affidavits. It was only the most reliable evidence that was relied upon and the privilege in relation to communications with a patent attorney were not subject to privilege. 

[Slide 43] So briefly, note the differing approaches. As I have mentioned before, as a starting point, legal professional privilege is staunchly defended but it can be lost if the lawyers become involved in the misconduct themselves. Those are really the two sides of legal professional privilege. The party should be able to seek advice in relation to wrongdoing to protect their rights and the law encourages that giving a frank instructions and print advice. But things change when the lawyers become involved in the misconduct, then the courts are very quick to at least entertain an application. They will of course always turn on the evidence in that particular case. The extent of the declaration will also of course extend on the evidence in the case. But many of us have views about some of our colleagues. It is amazing that these types of applications are not bought more often. No one in this room, obviously, but we see we see things that make us gasp every now and then. I am surprised that we see these things so rarely. The rationale is, Justice Gaudron pointed out in Propend, “persons are assumed innocent, not guilty”. A very, very strong starting point, as long as it is the client doing the wrong thing that is protected. 

PRACTICAL CONSIDERATIONS CONCERNING LEGAL PROFESSIONAL PRIVILEGE

48:50

MJ: [Slide 44] What then in conclusion? Practical considerations for us in our day-to-day practice in dealing with expert evidence, or otherwise. Now that r 212 has been dealt with, the issue of abrogation will probably arise most often in disciplinary or directing misconduct cases where there are investigative powers that are being pursued. There might be new statutes in the future but particular abrogations in support investigative powers.

The first point is that we should be looking for the formulation of the abrogation to see if it is expressed in general words that can be read down in a way to still give operation. So, limit to the particular taxonomy of the documents or some particular subcategory. Do not assume that it is that it covers the whole field. 

Next point, we should always remember that it needs to be claimed to be relied upon. Now, let us refer to the protection of the core aim of obtaining admissible evidence. The Court of Appeal has once again, this time at least, implicitly endorsed the role of lawyers being involved in the development of expert evidence, protecting notes and the communications back and forth, as expert reports are formed. That helps us to get expert evidence which is admissible and useful. The courts giving practitioners the benefit of the doubt, which is welcomed and important. There needs to be sufficiently demonstrable misconduct that reaches the other side's knowledge to warrant intervention. It is the court’s duty, quite properly, to ensure sometimes by shoehorning and lengthy conferences with experts that their draft reports turn into admissible and useful documents. We should do that and we should now have comfort that we should be taking notes of what we are doing for our own protection but those notes will be protected. 

These things often happen in a hurry because, particularly for the illegality exception, these things might only emerge in the cut and thrust of cross examination in trial. We should always be ready. I promised a controversial suggestion that at least some people will disagree with and I will close on that. 

Now that the file note controversy is dead, what is the next thing where we are going to get caught or someone is going to get in trouble within a couple of years time for what happened in relation to expert evidence? I would suggest it is going to be about the process of having online meetings with experts by Zoom or Teams where the expert puts up the version of their report and it is discussed by solicitors and counsel. So, the workshop needed to prepare the document. I am pretty confident of the view there is nothing wrong with having those meetings. In fact, we will be the ones who get yelled at if the expert reports are inadmissible and this is not done but it is what you do with the documents. Those drafts when they are published on Zoom or Teams are documents within the meaning of the Acts Interpretation Act. They are disclosable, pursuant to Murphy Operator. 

The current practice is to ask an expert to just use the one Word document and keep saving over it, so there is nothing to disclose as a draft report. Nothing is disclosed pursuant to subpoenas. The drafts are deliberately saved over to destroy a draft report which would otherwise be disclosable and which would otherwise be probative as exposing the expert’s state of mind and the extent of the lawyers involved in the drafting. The exposure might be good or bad for the expert, it might support the expert’s independence, or it might show shenanigans to use a technical term. We as lawyers know that those drafts existed because we were there for the meeting where we saw the thing online, we know that the expert has saved over it. We know they have just tweaked a disclosable document. Depending on the file system used, each of those earlier versions might be readily recoverable by a little drop down screen in the top right hand corner of your browser or your version of MS Word, so they are not hard to get hold of. The expert might be subpoenaed to produce drafts. If the expert does not produce the native version with the earlier versions recoverable or if the expert produces nothing by way of drafts because they have deliberately made sure there are no drafts, there might be a question about whether that is contempt of court. The courts rely on practitioners to maintain the integrity of the system. The deliberate overwriting of disclosable documents during litigation might be the next controversial issue that goes upstairs. How do we make that happen? It might be the framing of subpoenas, notices, and non-party disclosure, that we all tool up on how Office 365 works and ask for earlier versions of documents and ask for native files, and then perhaps ask some questions if nothing is produced. 

Thank you very much for your attention.

54:14

[Slide 45] I should have asked if there any questions for either of us. 

54:26

Audience: [question inaudible].

54:46

MJ: The question is whether in the Oceltip example where there are allegations as to the state of mind of a party whether the practitioners involved would be compellable witnesses. I think the answer is yes, in that particular case. There are a couple of people here who were involved in that. The relevant lawyers were not the lawyers acting. It was about someone who was in house counsel years earlier but privilege was claimed over the communications back and forth, but on different facts that could be right, that if the lawyers acting in the litigation were the ones who gave the advice about what to do about something that could become an issue for sure. 

Any other questions? I am grateful, that was a good point. 

Thank you very much for attending today. We were pleased to see so many people come along in this post COVID but still beplagued world. Thank you very much.

Liability limited by a scheme approved under professional standards legislation